Guidelines for Filing an H-1B Petition

Important: This information is provided as general background for the benefit of University of Tennessee, Knoxville international students and their prospective employers. It is not intended to be used as the sole source of instructions for the filing of an H-1B petition. Note that H-1B petitions/applications must be filed by the employer and not by the employee. Because of the complexities of the laws, and the liabilities to employers, it is essential that the employer become familiar with the laws related to the H-1B petition before making any application.

We provide this information to assist the employer in making an initial decision whether to file an H-1B petition, and then in locating the relevant regulations and necessary forms. If the employer is not comfortable processing an H-1B application alone, we suggest the use of an immigration attorney. A partial list of immigration attorneys is available from the Center for International Education, University of Tennessee.

Information for Prospective Employers

NOTE: For all employees of The University of Tennessee, Knoxville, H-1B paperwork must be done by The University of Tennessee Center for International Education. Call 865-974-3177 for further information or to initiate an H-1B petition.

Relevant regulations

IMPORTANT: Before filing any applications related to an H-1B petition, it is essential that the employer should read the relevant regulations carefully. There are two sets of related regulations: one from the U.S. Department of Labor (DOL) and one from the U.S. Department of Homeland Security (DHS).

DOL regulations can be found as follows:

• Published in the Federal Register, December 20, 2000, pages 80110-89254
• Also see 20CFR Parts 655 and 656 29CFR Part 507. (CFR = Code of Federal Regulations)
• See also http://www.dol.gov

DHS regulations can be found as follows:

• Published in the Federal Register, December 2, 1991, pages 61111-61137
• Also see 8CFR Part 214.2(h)

Amendments to the regulations of 12/2/91 were published as follows:

• Federal Register, August 15, 1994 (pp. 41818-41842) [mostly related to O and P regulations for athletes and performing artists]
• Federal Register, January 11, 1994 (pp. 1468-1470) and December 4, 1995 (pp. 62021-62022) [related mainly to physicians]
• See also http://cis.gov

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Basic Steps Involved in an H-1B petition to be Followed by Employers

1. Read relevant regulations as listed on previous page (Do not file any H-1B applications before reading regulations!)
2. Make preliminary determination of basic eligibility for H-1B status based on job title and employee's qualifications
3. Calculate and document the "Actual Wage" for the position at the place of employment (company or institution) according to DOL regulations and guidelines
4. Obtain documentation of "Prevailing Wage" for area of employment, according to DOL regulations

Note: to obtain a SESA Prevailing Wage for a job in Tennessee, contact the Alien Employment Certification Unit, Tennessee Department of Labor and Workforce Development, Nashville, TN 37245-1200; Phone: (615) 741-3780; Fax: (615) 741-6392. (The Prevailing Wage is valid for 90 days.) It may take 2-4 weeks or more to obtain the Prevailing Wage from the Tennessee SESA.

5. Determine compliance with other statements on the Labor Condition Application (LCA) or Form ETA 9035E.
6. Notify bargaining representative or fulfill posting requirements as specified by DOL regulations.

[The purpose of this requirement is to notify other employees that you intend to file an H-1B petition and to give them a chance to comment to DOL. It is not intended as an announcement of job availability.]

7. Prepare Public Access File as specified in DOL regulations.
8. Complete and sign Form ETA 9035E (LCA); form is available at http://www.lca.doleta.gov/ and can be submitted electronically.
9. When the certified copy of the LCA is received, complete and sign two copies of an H-1B petition (Form I-129 with Supplement H) and submit with supporting documentation to the U.S. Citizenship and Immigration Service (CIS), a branch of the Department of Homeland Security. Petition may be filed for a maximum of three years.

To obtain Form I-129, go to http://www.ins.gov.

For jobs located in Tennessee, H-1B petitions should be mailed to U.S. CIS, Texas Service Center, P.O. Box 852211, Mesquite, TX 75185-2211. We do not recommend using Federal Express or other private courier service, but Express Mail (through the U.S. Postal Service) is acceptable.

For a complete list of materials to be included with the petition, see the I-129 instructions. At a minimum, the petition should include the following: (With the exception of the completed I-129, photocopies are normally acceptable.)

• I-129 Form (with Supplement H), with original signature of employer representative
• Documentation of employee's diploma and other qualifications for position. (If diploma is not in English, a certified translation should be included; CIS may request an official evaluation of foreign credentials)
• Copy of offer of employment or employment contract
• LCA (ETA 9035E) certified by DOL
• Check or money order for required fee ($185 or $1185 for premium processing) (In many/most cases, fees should be paid by employer; employee should not reimburse employer, as this may affect the salary requirements.) (Check should be made out to Department of Homeland Security)
• Letter describing employer and explaining nature of job
• Documentation that the employer is financially able to pay the stated salary
• If employee is in the U.S. and wishes to change status to H-1B, include documentation of current immigration status and work authorization, if any.
• If employees' spouse and/or children are in the U.S. and wish to change to H-4 status, they should complete and sign Form I-539 and submit it with documentation of immigration status and required fee. This should normally be mailed with the petition. The I-539 form is available from http://www.cis.gov. Attach check or money order for $195 (for any number of dependents)

DHS may request additional documentation or information before making a final decision. Common requests are for more detailed explanation of educational credentials, a more detailed job description, or more information about the employer.

If DHS does not request additional information, the decision should be received in about 3-6 months. (Processing time vary widely. Go to https://egov.immigration.gov/cris/jsps/index.jsp to see current processing times. If premium processing is requested, an answer should be received in 2-3 weeks. Applications filed around the time that the “cap” has been hit may be delayed or may not be accepted at all.)

10. Give copy of certified LCA to employee (required by law). It is also suggested that he/she be given a copy of the petition.
11. When H-1B petition has been approved, DHS will send a Form I-797 to the employer. This should be kept by the employer but may be loaned to the employee for the purpose of applying for a visa. If DHS has also approved a change of status, the I-797 will include a new I-94 showing H-1B status. Employee should receive original I-94 and photocopy of I-797.
12. If employee is not in the U.S., he/she should apply for a visa at a U.S. Consulate, using the I-797 approval from DHS. See travel.state.gov for visa application information.
13. When the employee has received a visa, he/she may travel the U.S. and be admitted in H-1B status.
14. When the petition has been approved and the employee has been granted H-1B status, the employee may begin working.

If the employee already has valid work authorization, he/she may begin working before the petition is filed. However, if work authorization expires before H-1B petition is approved, employee must stop working. Exceptions: If employee already has H-1B status, he/she may normally begin new job as soon as DHS receives new petition; if employer has applied for an extension of H-1B status, employee may continue working for 240 days.]

15. To apply for extension of H-1B petition, repeat the above procedure. Extensions may be requested up to a maximum of six years. If employee has applied for Permanent Resident status, it is sometimes possible to obtain H-1B extension beyond six years.

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